Hate speech law unconstitutional: rights tribunal

By Joseph Brean, National PostSeptember 2, 2009

The Canadian Human Rights Tribunal on Wednesday ruled that Section 13, Canada’s much maligned human rights hate speech law, violates the Charter right to free expression because it carries the threat of punitive fines.

The shocking decision by Tribunal member Athanasios Hadjis leaves several hate speech cases in limbo, and appears to strip the Canadian Human Rights Commission of its controversial legal mandate to pursue hate on the Internet, which it has strenuously defended against complaints of censorship.

It also marks the first major failure of Section 13(1) of the Canadian Human Rights Act, an anti-hate law that was conceived in the 1960s to target racist telephone hotlines, then expanded in 2001 to the include the entire Internet, and for the last decade used almost exclusively by one complainant, activist Ottawa lawyer Richard Warman.

Mr. Warman’s first big loss is a victory for the respondent Marc Lemire, webmaster of freeedomsite.org and a prominent figure in the Canadian far right.

Typically for the messy state of Canada’s perennial hate speech debate, public reaction to the ruling yesterday was polarized, running the spectrum from glowing praise for the “bold” Mr. Hadjis, to criticism that his “outrageous” conclusion is “vulnerable on judicial review.”

All sides seem to agree, however, that the stage is set for pitched battle in federal court, where CHRT rulings can be appealed. Another less likely outcome is for Parliament itself to repeal or amend Section 13, a law that even supporters say needs updating in the age of the Internet.

Neither the CHRC nor Mr. Warman would comment.

“No matter what happens, this decision is going to federal court,” Mr. Lemire said. “This is the beginning of the end for Section 13 now. This law is 32 years old. Not a single person has ever won until today. But did I really win? I have given up six years of my life. The process is the punishment.”

Mr. Warman, a former investigator for the CHRC, brought a complaint against Mr. Lemire in 2003, after monitoring his website for almost a year. He alleged that postings on the discussion forum, mostly written by others, contravened Section 13 in that they were “likely to expose” identifiable groups to “hatred or contempt.” Mr. Warman later urged the CHRC investigators to expand their investigation to other websites he believed Mr. Lemire was involved with, but to “hold off on informing” Mr. Lemire “until the police take a good look at it.” No criminal charges were ever filed.

In all but one case, Mr. Hadjis decided that these postings either did not contravene Section 13(1), or that Mr. Lemire cannot be held responsible for what others posted on his website.

Mr. Hadjis found Mr. Lemire violated the law in one case, by posting an article called “AIDS Secrets”, written by an American neo-Nazi, which Mr. Hadjis found was “rife with hyperbole and moral condemnation. Homosexuals, and Blacks to a lesser extent, are denigrated as purveyors of a “killer” that is on the loose, agonizingly destroying the lives of American children and adults alike.”

Even with this finding, however, Mr. Hadjis declined to make any order against Mr. Lemire. As a statutory tribunal, Mr. Hadjis does not have the legal authority to officially declare a law unconstitutional. But if he finds it would be unconstitutional to enforce it, he can do as he has done, which is to “simply refuse to apply these provisions.”

Part of his motivation was that virtually all the offending material was removed either before or shortly after Mr. Lemire received word of the complaint against him.

“Mr. Lemire had not only “amended” his conduct by removing the impugned material, but sought conciliation and mediation as soon as he learned of the complaint against him,” Mr. Hadjis wrote. “The problem had thus already been eliminated, yet the complaint continued to be processed.”

Section 13(1) remains valid Canadian law, despite this ruling. Its constitutionality was last upheld by the Supreme Court of Canada in a 1990 split decision, before the Internet age.

That decision, about neo-Nazi John Ross Taylor, upheld the law as a justifiable limit on free expression largely because of its remedial, non-punitive purpose. But Mr. Hadjis found that that, today, the law “has become more penal in nature,” and this renders it an unjustifiable limit on freedom of expression.

Ever since a 1998 amendment to allow the Tribunal to levy fines up to $10,000 -- payable to the government -- the pursuit of Section 13(1) cases “can no longer be considered exclusively remedial, preventative and conciliatory in nature,” he wrote.

He cited Mr. Warman’s request for a $7500 penalty against Mr. Lemire. Mr. Warman has won over a dozen other Section 13(1) cases, many leading to similar fines, payments to himself, and legal restrictions on Internet activity.

This criticism about a punitive law masquerading as a remedial one echoes that of Richard Moon, a law professor hired by the CHRC last year to provide an expert analysis of their online hate speech mandate. In essence, his advice was that it could not be done fairly, and so should not be done at all.

Prof. Moon said Wednesday's decision is “obviously a significant moment in the history of Section 13, but it seems like it is in some important sense inconclusive.”

He said the ruling has no weight as legal precedent, and could theoretically be ignored by future tribunals, but in practice it is impossible to ignore, and it hints at a fundamental problem with the law.

“As soon as the Supreme Court confirmed that the scope of Section 13 was narrow, and confined to extremely hateful messages, then it was highly unlikely that we were going to have a kind of regular human rights process that involves conciliation between the parties,” he said. “That was always something that we could have foreseen.”

“We still believe Section 13 is constitutional. There seems to be some major difference of opinion within the Tribunal itself,” said Bernie Farber, CEO of the Canadian Jewish Congress, referring to previous constitutional challenges of Section 13 that went the other way.

Marvin Kurz, legal counsel to B’nai Brith, which was an intervenor in this case along with the CJC and others, echoed Mr. Farber's question about why Mr. Hadjis did not simply “read out” the penalty section -- that is, ignore it, but allow the actual hate speech section to stand.

“Not only did he not do it, but he failed to explain why he did not consider the alternative,” Mr. Kurz said. “It’s like if the police act wrongly in a criminal case, you don’t throw out the criminal law. That’s what he’s done here, and that doesn’t make sense to me.”

Ezra Levant, a blogger who has led the campaign against human rights hate speech law, said the ruling “shows that the CHRC has been acting illegally for many years,” and it forces the Conservative government to make a “new kind of decision” about whether to appeal.

“If they launch an appeal, they are casting their lot with the censors,” he said.

Pearl Eliadis, a human rights lawyer and a defender of Section 13, played down the importance of the ruling, and said Mr. Hadjis “just got it wrong. With respect, it’s constitutionally not within the normal way that these provisions are dealt with.” She said he should have simply ignored the offending penalty section and upheld the law.

Bruce Ryder, a constitutional law professor at York University, said Mr. Hadjis was correct to find that the penalty provision “exacerbated the chilling effect” on freedom of expression. But he said Mr. Hadjis’ reasoning “broke down at the end,” and he should have simply rejected the penalty provision.

He also wondered how Mr. Lemire was acquitted over the posting of an article that explicitly denied the Holocaust, which he called “outrageous and inconsistent with jurisprudence,” and makes the entire ruling “vulnerable on judicial review.”

Mark Steyn, a conservative author who was the target of a prominent hate speech complaint over his writing in Maclean’s, said Mr. Hadjis’ realized “that there is no future for Section 13 because of the damage done to it by the dress-up Nazis of the CHRC and and the sordid racket of Richard Warman.”

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